Crl.M.C. No. 9525 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946** **CRL.MC NO. 9525 OF 2022** **FOR CANCELLATION OF BAIL GRANTED TO THE ACCUSED IN CRIME NO.1464/2022 OF ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM DISTRICT, VIDE ORDER DATED 14.12.2022 IN CRL.M.C NO.2834/2022 OF SESSIONS COURT, ERNAKULAM DIVISION** ## **PETITIONER/DEFACTO COMPLAINANT:** ## **XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX** **BY ADV. BOBBY RAPHEAL.C** ## **RESPONDENTS/STATE & ACCUSED:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031** - **2 XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX** **BY ADVS.** **GOVERNMENT PLEADER RAJASIMHAN A VYKHARI.K.U(K/712/2020) SHARAFUDHEEN M.K.(K/000044/2020)** **SMT. SEENA C – PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARED ON 17.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **2** Crl.M.C.No.9525 of 2022 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------Crl.M.C.No.9525 of 2022 -----------------------------------------------------Dated this the 17[th] day of July, 2024** ## **O R D E R** This is a petition filed by the defacto complainant in Crime No.1464 of 2022 of Ernakulam Town North Police Station under Section 482 of the Code of Criminal Procedure, 1973. She seeks to quash Annexure 2 order by which the Court of Sessions, Ernakulam granted anticipatory bail to the 2[nd] respondent who is the accused in that case. 2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the 2[nd] respondent. 3. The essential contentions of the petitioner are that no notice was given to her by the Sessions Court before granting bail to the 2[nd] respondent as per Annexure 2 order and many facts noticed in the said order are incorrect. The learned counsel for the petitioner would submit that it was the absolute right of the petitioner of being heard since the **3** Crl.M.C.No.9525 of 2022 offences alleged against the 2[nd] respondent are so serious. But the learned Sessions Judge did not choose to give a notice. Particularly when an offence of rape was also alleged against the 2[nd] respondent grant of anticipatory bail without hearing the petitioner caused grave prejudice to her. As regards the allegation that many facts stated in the impugned order are wrong, it is submitted that on the date on which the petitioner was summoned itself, she appeared before the learned Magistrate and gave statement, but the Sessions Court noticed otherwise in the order. 4. The learned counsel for the 2[nd] respondent refutes the said submissions. It is submitted that giving notice to the defacto complainant is not a necessity always and that the petitioner although appeared before the learned Magistrate, she was not prepared to give statement on the first occasion and therefore the observation of the learned Sessions Judge cannot be said to be incorrect. The learned Public Prosecutor also made submissions on the said lines. 5. The learned Public Prosecutor made available for my perusal, a copy of the final report submitted already **4** Crl.M.C.No.9525 of 2022 before the Additional Chief Judicial Magistrate, Ernakulam. Since the final report is already submitted, the controversy concerning grant of the anticipatory bail practically faded into insignificance. Therefore, I am not expected to delve deep into the matter. However, it is essential to consider the contention concerning denial of opportunity to the petitioner before granting anticipatory bail to the 2[nd] respondent. 6. In **Jagjeet Singh and others v. Ashish Mishra and others [(2022) 9 SCC 321]** the Apex Court considered the necessity of giving notice to the victim of the offence while deciding bail application. There is no statutory obligation to give notice to the defacto complainant except in a few situations, such as, under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 439(1-A) of the Code, etc. However, the Apex Court held, on the point of prejudice that may happen to the victim in cases involving heinous offence, that notice shall be given to the victim before granting bail to the person accused of the offence. It was observed that the presence of State in a proceedings of bail application does not tantamount to **5** Crl.M.C.No.9525 of 2022 hearing of the victim of the crime. The observations of the Apex Court reads: “25. what must be taken note of is that; First, the Indian jurisprudence is constantly evolving, whereby, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged; Second, where the victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing. If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a ball application, the same may result in grave miscarriage of justice. Victims certainly cannot be expected to be sitting on the fence and watching the proceedings from afar, especially when they may have legitimate grievances. It is the solemn duty of a court to deliver justice before the memory of an injustice eclipses.” The Apex Court accordingly held that a bail application in a case involving a heinous crime shall be decided on merits after giving an opportunity of being heard to the victim as well. 7. Indisputably no notice was given to the petitioner in Crl.M.C.No.2834 of 2022 wherein anticipatory bail was **6** Crl.M.C.No.9525 of 2022 granted to the 2[nd] respondent. The said order therefore suffers from such an infirmity. However, the question is whether for that reason the anticipatory bail already granted to the petitioner needs to be cancelled. 8. In **Deepak Yadav** ( _supra_ ) the Apex Court deliberated on the question of jurisdiction to cancel bail. Illustrative circumstances for cancelling bail are enumerated in paragraph No.31 which reads: “31. It is no doubt true that cancellation of bail cannot be limited to the occurrence of supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Following are the illustrative circumstances where the bail can be cancelled :- a) Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record. b) Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim c) Where the past criminal record and conduct of the accused is completely ignored while granting bail. d) Where bail has been granted on untenable grounds. **7** Crl.M.C.No.9525 of 2022 e) Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice. f) Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified. g) When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case.” 9. The petitioner has no allegation that the 2[nd] respondent misusing the liberty granted by the order of anticipatory bail did anything affecting her safety or security. Now the final report is already filed which is pending consideration of the jurisdictional court. 10. In the said circumstances, I am of the view that it is not just or apposite to cancel the anticipatory bail granted to the petitioner. All the same, the observations in Annexure 2 order which were made without giving an opportunity of being heard to the petitioner cannot have any bearing insofar as the trail and disposal of the case is concerned. Therefore I direct that the Sessions Court which inquires into and try the case shall decide the matter without anyway trammeled by any of the observations in Annexure 2 order. **8** Crl.M.C.No.9525 of 2022 The Crl.M.C is disposed of accordingly. Sd/- **P.G. AJITHKUMAR, JUDGE** PV **9** Crl.M.C.No.9525 of 2022 ## **APPENDIX OF CRL.MC 9525/2022** ## **PETITIONER ANNEXURES** **Annexure A1 TRUE COPY OF THE FIR AND FIS IN CRIME NO. 1464/2022 OF ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM. Annexure A2 TRUE COPY OF THE ORDER DATED 14.12.2022 IN CRL.MC NO. 2834/2022 OF SESSIONS COURT, ERNAKULAM DIVISION. Annexure A3 TRUE COPY OF JUDGMENT DATED 06.06.2016 IN OP NO. 2005/2015 OF FAMILY COURT, THIRUVANANTHAPURAM.** - **Annexure A4 TRUE COPY OF THE ACCIDENT REGISTER CUM WOUND CERTIFICATE DATED 21.09.2022 ISSUED FROM GENERAL HOSPITAL, ERNAKULAM.** - **Annexure A5 TRUE COPY OF THE COMPLAINT IN C.C.NO.730/2022 ON THE FILE OF ADDL. CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** - **Annexure A6 TRUE COPY OF THE ORDER DATED 18.11.2022 IN CRL.M.C. NO.2619/2022 OF DISTRICT AND SESSIONS COURT, ERNAKULAM.** - **Annexure A7 TRUE COPY OF THE FIR IN CRIME NO.657/2022 OF INFOPARK POLICE STATION, ERNAKULAM DATED 06.01.2022.** - **Annexure A8 TRUE COPY OF THE FIR IN CRIME NO. 920/2022 OF INFOPARK POLICE STATION, ERNAKULAM DATED 03.12.2022** - **Annexure A9 TRUE COPY OF THE E-MAIL COMPLAINT DATED 15.12.2022 SENT BY THE PETITIONER TO THE CHIEF MINISTER OF** **10** Crl.M.C.No.9525 of 2022 **KERALA AND DIRECTOR GENERAL OF POLICE.** - **Annexure A10 TRUE COPY OF THE REPLY DATED 15.12.2022 OF THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM.** - **Annexure A11 TRUE COPY OF THE E-MAIL COMPLAINT DATED 20.12.2022 OF PRIME WITESS TO THE CHIEF MINISTER OF KERALA.** - **Annexure A12 TRUE COPY OF THE THREATENING 7 POSTING SENT BY THE ACCUSED TO THE WHATSAPP OF NANDAGOPAN, THE PRIME WITNESS.** **Annexure-15** - **TRUE COPY OF THE DEPOSITION OF SARANYA B. RAJA IN CRIME NO. 844/2023 OF HILL PALACE POLICE STATION, TRIPUNITHURA** - **Annexure -16 TRUE COPY OF THE DEPOSITION OF SIDARTH VARMA IN CRIME NO. 844/2023 OF HILL PALACE POLICE STATION, TRIPUNITHURA** - **RESPONDENT ANNEXURES** - **Annexure R2(a) TRUE COPY OF THE COMPLAINT IN CC N. 730 OF 2022 ON THE FILES OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** - **Annexure R2(b) TRUE COPY OF THE FACE BOOK POST DATED 03.12.2022.** - **Annexure R2(c): TRUE COPY OF THE FACE BOOK POST DATED 07.12.2022.** - **Annexure R2(d): TRUE COPY OF THE FACE BOOK POST DATED 07.12.2022.** - **Annexure R2(e): TRUE COPY OF THE FACE BOOK POST DATED 04.1.2023.** - **Annexure R2(f) TRUE COPY OF THE FACE BOOK POST DATED** **11** Crl.M.C.No.9525 of 2022 **06.1.2023.** **Annexure R2(g): TRUE COPY OF THE FACE BOOK POST DATED 06.1.2023. Annexure R2(f) TRUE COPY OF THE FACE BOOK POST DATED 06.1.2022.** **Annexure R2(h) TRUE COPY OF THE FACE BOOK POST DATED 27.1.2023.** **Annexure R2(i) TRUE COPY OF THE FACE BOOK POST DATED 02.4.2023.** - **Annexure R2(j) TRUE COPY OF THE FACE BOOK POST DATED 14.5.2023.** - **Annexure R2(k) TRUE COPY OF THE FACE BOOK POST DATED 18.5.2023.** - **Annexure R2(l) TRUE COPY OF THE MARRIAGE PHOTO OF THE PETITIONER.** **Annexure R2(m) TRUE COPY OF THE ORDER OF THIS HONOURABLE COT IN TRP (C) NO.83/2007 DATED 25.09.2007.** - **Annexure R2(n) TRUE COPY OF THE ORDER OF THE HIGH COURT OF KERALA IN WP(C) NO.4198/2011 DATED 09.02.2011.** **Annexure R2(o)** **TRUE COPY OF THE JUDGMENT OF ADDITIONAL SESSIONS COURT (FAST TRACK), ALUVA IN SC NO.752/2017 DATED 25.01.2023**